Charles P. Pratt, et al v. Indian River Central School Dist., et al 7:09-CV-0411 (GTS/TWD) U.S. District Court, N.D. New York November 05, 2012 Counsel OF COUNSEL: THOMAS W. UDE, JR., ESQ., HAYLEY J. GORENBERG, ESQ., LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., 120 Wall Street, Suite 1500, New York, NY 10005-3904, Counsel for Plaintiffs OF COUNSEL: ALEXANDRA P. KOLOD, ESQ., ADAM T. HUMANN, ESQ., KIRKLAND & ELLIS LLP, Citigroup Center, 601 Lexington Avenue, New York, NY 10022-4611, Counsel for Plaintiffs OF COUNSEL: FRANK W. MILLER, ESQ., CHARLES C. SPAGNOLI, ESQ., LAW FIRM OF FRANK W. MILLER, 6575 Kirkville Road, East Syracuse, New York 13057, Counsel for Defendants Dancks, Therese Wiley, United States Magistrate Judge Order *1 Presently before the Court are three Motions filed by Defendants including: (1) Motion for a Protective Order; (2) Amended and Supplemental Motion for Protective Order; and (3) Second Amended Motion for Protective Order. (Dkt. Nos. 106, 109 and 112.) Also before the Court is Plaintiffs' Letter Motion requesting that the Court reject Defendants' Amended and Supplemental Motion. (Dkt. No. 110.) Plaintiffs have responded to the Defendants' Motions and Defendants have responded to Plaintiffs' Letter Motion. (Dkt. Nos. 111, 113.) Defendants, with permission, filed a reply. (Dkt. No. 119.) I. Issues in Dispute The central issue in dispute is whether Plaintiffs may obtain discovery, through written discovery or depositions, concerning evidence of alleged acts of discrimination or harassment occurring in a facility of the Defendant Indian River Central School District (“District”) at a time when Plaintiff Charles Pratt (“Pratt”) was not enrolled at and attending such facility (the “Non-Pratt Environment Evidence”). Plaintiffs seek such discovery and Defendants move for a Protective Order to prohibit further disclosure of Non-Pratt Environment Evidence. By their Amended and Supplemental Motion, and Second Amended Motion, Defendants also seek, pursuant to Federal Rule of Civil Procedure 26(c), an Order striking Plaintiffs' May 14, 2012 Notice of Deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) as, in addition to the Non-Pratt Environment Evidence sought therein, unduly burdensome and overly broad. Defendants also request an Order directing Plaintiffs to refrain from seeking further discovery concerning Defendants' document preservation efforts and litigation hold procedures. Plaintiffs' Letter Motion requests that the Court reject Defendants' Amended and Supplemental Motion, and order the parties to confer, pursuant to Local Rule 7.1(b), regarding the contents of the Notice of Deposition and the discovery requested on Defendants' document preservation efforts and litigation hold procedures. II. Non-Pratt Environment Evidence Federal discovery is broad in scope. Montalvo v. Hutchinson, 837 F. Supp. 576, 578 (S.D.N.Y. 1993). The Federal Rules of Civil Procedure provide that discovery may be had of any matter that is not privileged as long as it is relevant to the claims or defenses of any party. Fed. R. Civ. P. 26(b)(1). Information is relevant if it is reasonably calculated to lead to the discovery of admissible evidence. Daval Steel Products v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991). The discovery system set forth by the Federal Rules of Civil Procedure is a permissive one which has typically been afforded broad and liberal treatment by the courts. Official Comm. of Unsecured Creditors of Hechinger Inv. Co. of Del., Inc. v. Friedman, 350 F.3d 65, 69 (2d Cir. 2003). In Plaintiffs' Amended Complaint, Plaintiff Pratt asserts claims for hostile education environment under the First Amendment, the Equal Protection Clause, Title IX and various state statutes. See generally Dkt. No. 47. Plaintiff Pratt alleges that the harassment began in his “earliest years in the School District.” Id. at ¶ 2. Plaintiff Pratt was born in 1988 and attended schools in the District from 1993 to October 2004, with the exception of brief periods in 2001 and the Spring of 2004. (Dkt. No. 106-2 at ¶ 3; Dkt. No. 106-10 at 6.[1]) He attended Indian River High School (“High School”) from 2002 to 2004. (Dkt. No. 47 at ¶ 53.) Plaintiff Pratt also claims he requested and was denied permission to form a gay-straight alliance (“GSA”) student group at the High School. Id. at ¶ 84. *2 The Amended Complaint also alleges that a hostile environment at the High School existed before Pratt arrived there and that Defendants had notice and opportunity to address it but failed to do so. Id. at ¶¶ 105-112. Plaintiff A.E.P. claims she requested and was denied permission to form a GSA while at the High School. See generally Dkt. No. 47. She attended the High School from 2007 to 2011. (Dkt. No. 106-2 at ¶ 4.) Plaintiffs have served written interrogatories and document production requests, as well as a Deposition Notice, seeking discovery of information relating to student disciplinary matters within the entire Defendant District going back as far as 1990. (Dkt. Nos. 106-3, 106-4, 106-5 and 109-2.) Defendants contend that information concerning alleged harassment and discrimination occurring in a District building when Plaintiff Pratt was not present or was not a student in the building is not relevant to his claims of a hostile education environment and that the demands are overly burdensome in relation to the relevancy of the information sought. Defendants seek to prohibit the disclosure of such information and specifically define the Non-Pratt Environment Evidence as: • Alleged incidents occurring before Plaintiff Pratt commenced school in the District (i.e., prior to the 1993-1994 school year); • Alleged incidents during Plaintiff Pratt’s attendance in the District (1993 to October, 2004) which occurred in a different school building than the one he was attending; and • Alleged incidents occurring after Plaintiff Pratt withdrew from the District (i.e., after October, 2004). (Dkt. No. 106-10 at 4.) Plaintiffs argue discovery of Non-Pratt Environment Evidence is relevant because it shows: (1) notice of the harassment to Defendants and their failure to address it; (2) the hostility and pervasiveness of the harassment; (3) the motive for Defendants' denials of requests for the formation of a GSA; and (4) the appropriateness of punitive damages. Hostile educational environment claims, whether brought under Title IX or § 1983, are generally governed by traditional Title VII “hostile environment” jurisprudence. Hayut v. State Univ. of N.Y., 352 F.3d 733, 744-745 (2d Cir. 2003). Proof includes “evidence not only that the victim subjectively perceived the environment to be hostile or abusive, but also that the environment was objectively hostile and abusive, that is, that it was permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of ... the victim’s educational environment.” Id. at 745 (internal quotations and other punctuation omitted) (professor on student harassment specifically discussing proof required to survive summary judgment); see also Davis ex rel. LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 651 (1999) (student on student harassment plaintiffs must show harassment “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”) I will first address the scope of what Plaintiff Pratt can allege as his ‘environment.’ As noted above, Title VII workplace discrimination cases are recognized as instructive on the subject of evidence that may be relevant to demonstrate the existence of a hostile environment. See, e.g., Davis, 526 U.S. at 651 (student on student harassment case citing the workplace same sex harassment opinion of Oncale v. Sundowner Offshore Servs., Inc.,523 U.S. 75 (1998)). The Second Circuit recognizes that remarks made outside a plaintiff’s presence and harassment directed at co-workers can be relevant to a hostile environment claim. Leibovitz v. New York City Transit Auth., 252 F.3d 179, 190 (2d Cir. 2001). A plaintiff who relies upon harassment that did not occur in her presence must establish that she shared “the same ‘environment’ - broadly conceived - as the woman allegedly harassed” and that the “harassment adversely affected the terms and conditions of her own employment.” Id. at 189. However, a plaintiff can only rely on such evidence to show how the alleged harassment contributed to his own working environment being hostile. Fox v. Nat'l R. R. Passenger Corp., No. 1:06-CV-1135, 2009 WL 425806, at * 6 (N.D.N.Y. 2009) (holding that the events did not affect the plaintiff’s working environment as he was not an active employee when the incidents occurred and did not witness the statements to co-workers); see also D.T. v. Somers Central School District, 348 Fed.Appx. 697, 699-700 (2d Cir. 2009) (evidence concerning alleged discrimination against another student at a different school in the defendant district not evidence of defendants' actual notice of the discrimination at issue). *3 The Non-Pratt Environment Evidence, as requested in Plaintiffs' discovery demands at issue, is beyond what could be broadly conceived as the ‘environment’ Plaintiff Pratt experienced while attending schools in the District. When Plaintiff was enrolled in any given school in the District, his ‘environment’ included that school in which he was enrolled. The Amended Complaint alleges acts of harassment toward Plaintiff Pratt at the schools he attended in the District when he attended them. He testified that when he was enrolled in the District Middle School, he remembered visiting the District High School at least once, but less than five times, and apparently did not claim specific harassment incidents on the limited visit(s). (Dkt. No. 106-6 at 7.) When attending the High School, he did not visit any of the other schools in the District. Id. Plaintiff also testified he never met either of the two individuals allegedly harassed years before him at the High School as identified in his Amended Complaint, Matthew Deem and Taunee Grant, and that he was never enrolled in classes in the same school building with either of them. Id. at 8-9; see alsoDkt. No. 47 at ¶¶ 105-112. He only spoke to Matthew Deem after the initial complaint was filed in this action, and has never communicated with Taunee Grant. Id. Thus, any alleged incidents of harassment or discrimination that may have occurred to other individuals years before Plaintiff Pratt was enrolled in a given school in the District and in the years after he was no longer attending schools in the District were not part of his ‘environment’ which consisted of different students and mostly different staff and administrators. (Dkt. No. 106-1 at ¶¶ 7-9.) Such a broad concept of Plaintiff Pratt’s educational environment is not sustainable in this case to demonstrate the harassment and discrimination he allegedly suffered in subjective or objective terms. Therefore, the burden of producing Non-Pratt Environment Evidence over a more that twenty-year span outweighs the likely benefit. Fed. R. Civ. P. 26(b)(2)(C)(iii). Plaintiffs' argument that Non-Pratt Environment Evidence is relevant to establish that the Defendants had notice of Pratt’s hostile education environment is unconvincing. Alleged student-on-student discrimination in schools that Plaintiff Pratt was not attending or in the years before or after Plaintiff Pratt’s attendance is not evidence of Defendants' actual notice of the discrimination at issue here. D. T., 348 Fed.Appx. at 699-700 (no inference of actual knowledge of discrimination where email in question concerned discrimination against a different student at a different school in the district). I turn now to the relevance of the requested discovery to Plaintiff A.E.P.’s claims. Plaintiff A.E.P. presents a claim for discrimination based upon the District’s denial of her request to form a GSA. (Dkt. No. 47 at ¶¶ 94-100.) This claim is based upon violations of the Equal Access Act, the First Amendment and New York’s Civil Rights Law § 40-c. Id. at ¶¶ 145-152, 158-163 and 214-219. Her claim rests on her rights to equal access to school facilities and her rights of free speech and association. She attended the High School from 2007 to 2011. (Dkt. No. 106-2 at ¶ 4.) Non-Pratt Environment Evidence for those years is relevant to her discrimination claim. Even while information may be relevant, the court must still balance a plaintiff’s need for the information against a defendant’s interest in not being required to produce responses to overly burdensome requests for evidence which may have little relevant value to the claims. In other words, the court must still evaluate the basis for the plaintiff’s request and make a determination of whether the material is relevant to the claims or likely to lead to relevant material. Croom v. W. Conn. State Univ., 218 F.R.D. 15, 16 (D. Conn. 2002). Notably, Federal Rule of Civil Procedure 26 was amended to specifically provide for limits on discovery in certain circumstances. See Fed. R. Civ. P. 26(b)(2). The rule now provides that by motion, or even on its own, the court must limit the frequency or extent of discovery otherwise allowed, if it finds, inter alia, that the burden or expense of the proposed discovery “outweighs the likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii). Accordingly, a protective order is appropriate for discovery sought by Plaintiffs concerning (1) incidents occurring before Plaintiff Pratt commenced school in the District (i.e., prior to the 1993-1994 school year); (2) incidents during Plaintiff Pratt’s attendance in the District (1993 to October, 2004) which occurred in a different school building than the one he was attending; and (3) incidents occurring after Plaintiff Pratt withdrew from the District (i.e., after October, 2004), with the exception of the years Plaintiff A.E.P. attended the High School from 2007 to 2011. Defendants' motion for a protective order (Dkt. No. 106) is therefore granted in part and denied in part. It is granted as to all of the Non-Pratt Environmental Evidence with the exception of evidence from the time that Plaintiff A.E.P. attended the High School. III. Defendants' Amended and Supplemental Motion and Second Amended Motion Regarding Document Preservation, Litigation Hold Procedures and Plaintiffs' Rule 30(b)(6) Notice *4 By their Amended and Supplemental Motion (Dkt. No. 109), and Second Amended Motion (Dkt. No. 112), Defendants seek, pursuant to Federal Rule of Civil Procedure 26(c), an Order striking Plaintiffs' May 14, 2012 Notice of Deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) as, in addition to the Non-Pratt Environment Evidence sought therein, unduly burdensome and overly broad. Defendants also request an Order directing Plaintiffs to refrain from seeking further discovery concerning Defendants' document preservation efforts and litigation hold procedures. Plaintiffs' Letter Motion (Dkt. No. 110) requests that the Court reject Defendants' Amended and Supplemental Motion and order the parties to confer, pursuant to Local Rule 7.1(b)(2), regarding the contents of the Notice of Deposition and the discovery requested on Defendants document preservation efforts and litigation hold procedures. A review of the docket sheet in this action shows that, on April 10, 2012, I held a telephone conference at the request of Defendants' counsel. The parties discussed the Defendants' request to narrow the scope of discovery and asked for a ruling as to what evidence is admissible at trial. (Min. Entry dated April 10, 2012.) The discussion centered on the parties' dispute regarding discovery and admissibility of the Non-Pratt Environment Evidence. Id.After hearing the parties' concerns with regard to the Non-Pratt Environment Evidence, I then gave Defendants' counsel permission to file a motion for a protective order on the scope of discovery and a motion in limine regarding its admissibility at trial. Id. The Defendants' motions were filed as one motion on April 24, 2012. (Dkt. No. 106.) On May 1, 2012, Judge Suddaby issued a Text Order denying without prejudice that part of the motion seeking to preclude the introduction of Non-Pratt Environment Evidence at trial and noted that the portion of the motion seeking a protective order on the discoverability of it remained pending before me. (Text Order dated May 1, 2012.) Thereafter, without further court conference or a request for a conference, Defendants' filed their Amended and Supplemental Motion and Second Amended Motion. Local Rule 7.1(b) requires that parties meet and confer before filing non-dispositive and discovery motions. There was no mention of the additional disputes concerning the issues raised in Defendants' Amended and Supplemental Motion and Second Amended Motion - that is the disputes about the document preservation, litigation hold procedures and the May 14, 2012 Rule 30(b)(6) Notice, except insofar as the Non-Pratt Environment Evidence is encompassed therein - in the court telephone conference on April 10, 2012. These disputes were not authorized to be brought in this motion, and their consideration by me is therefore premature. WHEREFORE, in accordance with the above decision, it is hereby ORDERED that Defendants' motion (Dkt. No. 106) for a protective order concerning the Non-Pratt Environment Evidence is GRANTED in part and DENIED in part such that Defendants are protected from producing discovery sought by Plaintiffs concerning (1) incidents occurring before Plaintiff Pratt commenced school in the District (i.e., prior to the 1993-1994 school year); (2) incidents during Plaintiff Pratt’s attendance in the District (1993 to October, 2004) which occurred in a different school building than the one he was attending; and (3) incidents occurring after Plaintiff Pratt withdrew from the District (i.e., after October, 2004), with the exception of the years Plaintiff A.E.P. attended the High School from 2007 to 2011.; and it is further ORDERED that Defendants' motions (Dkt. Nos. 109 and 112) regarding issues concerning document preservation, litigation hold procedures and the May 14, 2012 Rule 30(b)(6) Notice, except insofar as the Non-Pratt Environment Evidence is encompassed therein, are DENIED, without prejudice; and it is further *5 ORDERED that Plaintiffs' motion (Dkt. No. 110) is GRANTED and the parties are directed to consult and attempt to resolve the issues concerning document preservation, litigation hold procedures and the May 14, 2012 Rule 30(b)(6) Notice, except insofar as the Non-Pratt Environment Evidence is encompassed therein.